JATINDRA LAL SAHA Vs. NARENDRA CHANDRA DEV BARMAN

JUDGEMENT

(1.) IN a case instituted upon complaint the non -applicant Narcndra Chandra Dev Barman alias Malukha, a Sub -Inspector of Police was tried on charges for offences punishable under Sections 342 and 384 of the Indian Penal Code alleged to have been committed on 4 -8 -1950. After the conclusion of the trial and after hearing the arguments the learned Magistrate disposed of the case by passing the following order in the order sheet dated 26 -5 -1955:

(2.) THE complaint then moved the Sessions Judge by a revision petition and the learned Sessions Judge having come to the conclusion that in view of the provisions of Section 7 of the Police Act, 1861, no sanction under Section 197 Cr.P.C. was necessary, and also having taken the view that the learned Magistrate was bound to write a judgment on merits as required by Section 367 of Cr.P.C. and further that the order of acquittal based on the preliminary point of law was illegal has referred the case to this Court under Section 439 Cr.P.C.

(3.) IT will be hardly disputed that when an accused person pleads Section 197, Cr. P. C. as a bar to such trial then it is for him to show the facts which bring that section into operation. That the onus is on the accused also finds support from Huntlay Hector Thomas v. Emperor AIR 1944 Pat 378(C) and Sarjoo Prasad v. Bidyanandan Singh AIR 1946 Pat 108(D). But in this case surprisingly enough there is nothing to show what those facts are. The order of the learned Magistrate is also silent on that point and in fact, it is difficult to follow the reasoning by which he arrives at the conclusion that the bar in Section 197 is applicable to the case. The literal sense to be put on what he says appears to be that sanction to prosecute was necessary because what the accused did, he did while acting or purporting to act in the discharge of his official duty. But that is one of the conditions and not the only condition necessary to attract Section 197.